Considered
and decided by Worke,
Presiding Judge; Shumaker,
Judge; and Stoneburner,
Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

On appeal from conviction of two
counts of felony fifth degree assault, appellant challenges the sufficiency of
the evidence, asserts that the district court committed reversible error by
instructing the jury not to draw adverse inferences from his failure to
testify, and argues that the district court erred by entering two convictions and
imposing two sentences for a single behavioral incident. Because the evidence is sufficient to support
guilty verdicts on both counts of assault, and the district court’s failure to
obtain appellant’s personal consent to the jury instruction was harmless error,
we affirm the verdicts. Because both
counts arose out of a single behavioral incident, we reverse and vacate the
conviction on, and sentence for count II, violation of Minn. Stat. § 609.224,
subd. 1(2) (2004).

FACTS

Appellant Isaac Leon Hale was charged with two counts of
felony fifth degree assault, one count of gross misdemeanor obstruction of
legal process, and one count of petty misdemeanor possession of marijuana. Hale pleaded guilty to the obstruction and
possession charges and went to trial on the assault charges.

At
trial, Mariea Jones testified that on returning home from running errands on
the day in question, she observed Hale, whom she knew as “Doe,” sitting in a
parked car outside of her neighbor, C.T.’s house. Jones described “Doe” as C.T.’s boyfriend and
the father of C.T.’s child.

Jones testified that immediately
after she entered her house, C.T. came to her door screaming, “Let me in! Let
me in!” Jones opened the door, and C.T.,
who appeared frantic and crying, said, “Doe just beat my ass.” While Jones was calling 911, Hale pushed on
her door and looked in the windows. C.T.
told Jones her baby was with Hale. A
short time later, Hale placed the baby in a baby carrier on Jones’s front
steps. Jones testified that C.T.
screamed, “Don’t open up the door! Don’t open up the door!”

Winona police officer Edward Wooden testified
that he was dispatched to a “domestic situation,” and he was the first officer
to arrive at the scene. He observed a
baby in a car seat carrier on the front steps of Jones’s residence and several
people milling about the yard. He was
told that Hale had left on foot. Wooden
talked to C.T., whom he described as “hysterical . . . crying very loudly,
screaming, sobbing.” Wooden testified
that C.T. appeared fearful that Hale was going to come back. She provided Hale’s name and description to
Wooden, who directed other officers to search for Hale in the area.

Wooden testified, without objection, to statements C.T. made
to him at the scene. C.T. told Wooden
that Hale had come to see her where she was staying at a friend’s house and
asked her “what the f-ck she was doing.”
C.T. said Hale had been drinking that day and appeared to be
intoxicated. Wanting to avoid an
altercation at her friend’s house, C.T. said that she took Hale and their baby
out to the car. C.T. told Wooden that
when they got into the car, Hale called her a “dumb bitch” and started striking
her with his fist. C.T. said that Hale
drove around with her in the passenger seat, grabbing her hair, holding her
head down, and hitting her until she escaped by jumping out of the vehicle,
without the baby, when Hale pulled in front of her apartment. C.T. told Wooden that she had been struck on
the face, the back of her head, and her neck and complained of pain in those
areas. Wooden testified that there was
some discoloration on the right side of C.T.’s face where she was complaining
of pain, but it was difficult to determine whether there was actual
bruising.

Hale was apprehended a few blocks from the scene. Wooden testified that when officers brought
Hale to Jones’s home for identification, C.T. refused to go out and identify
Hale because she said she did not want him to see her.

The testimony of officers Rasmussen, Bittle, and Anderson
corroborated Officer Wooden’s testimony.
Bittle also testified that he located Hale a few blocks from C.T.’s
apartment. Bittle asked Hale to talk to
him, but Hale continued walking. When
Bittle followed, Hale swore at Bittle and said he had not done anything wrong
and did not want to talk. Bittle and
another officer arrested Hale and drove him back to Jones’s house where Jones identified
him. C.T.’s keys were in Hale’s
possession at the time of his arrest.
Rasmussen testified that after Hale was arrested, C.T. was no longer afraid
and said that she was happy that Hale was not coming back.

At trial, C.T., who testified under subpoena, gave a very
different version of what happened. C.T.
testified that she and Hale spent much of the day in question together. C.T. testified that later in the day, while
Hale was visiting a friend nearby, she received a phone call from another woman
Hale was seeing. C.T. testified that she
got into her vehicle with her infant son and went to confront Hale about the
phone call. C.T. testified that she
argued with Hale about the phone call and that she slapped him. She testified that she then went to Jones’s
apartment and had Jones call the police because she wanted Hale to leave her
house. C.T. denied that Hale was in the
car when she went to Jones’s apartment.
She testified, “I fabricated more than what it needed to be. I knew what I was doing because I needed him
to get away from me. I was fed up.” C.T. testified that her hysteria during
Jones’s call to 911 was because she was hurt and upset about Hale’s
relationship with the other woman. C.T.
said that she lied to officers when she told them that Hale grabbed her hair
and began to hit her. She said, “I
wanted them to take him to jail to get the hell away from me.” C.T. denied that she had any bruising on her
face, and she denied that Hale struck her or threatened her that day.

The jury convicted Hale of both
counts of assault. The district court
entered convictions on both counts and sentenced Hale to concurrent stayed
sentences of a year and a day and 15 months with conditions. This appeal followed.[1]

D
E C I S I O N

I. Sufficiency
of evidence

Because C.T. recanted her allegation
that Hale assaulted her and there were no other witnesses to the assault, Hale
argues that the state failed to prove beyond a reasonable doubt that he committed
the assaults charged, and his convictions must be reversed.

In considering a claim of
insufficient evidence, this court’s review is limited to a careful analysis of
the record to determine whether the evidence, when viewed in the light most favorable
to the conviction, is sufficient to allow the jurors to reach the verdict that
they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
The reviewing court must assume that the jury believed the state’s
witnesses and disbelieved any evidence to the contrary. State
v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of
the matter depends mainly on conflicting testimony. State
v. Pieschke,295 N.W.2d 580, 584
(Minn.
1980). The reviewing court will not
disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude the defendant was guilty of the charged offense. Bernhardt
v. State, 684 N.W.2d 465, 476-77 (Minn.
2004).

A person is guilty of fifth-degree
assault if he acts with intent to cause another to fear immediate bodily harm
or death, or if he intentionally inflicts or attempts to inflict bodily harm on
another. Minn. Stat. § 609.224,
subd. 1(1), (2) (2004). Hale asserts
that the state’s case consisted only of circumstantial evidence, requiring
stricter scrutiny than convictions based in part on direct evidence. State
v. Jones, 516 N.W.2d 545, 549 (Minn.
1994) (holding that a conviction “based entirely on circumstantial evidence
merits stricter scrutiny than convictions based in part on direct evidence”). But C.T.’s statements made to Jones and to
the police were admitted as substantive evidence, either as excited utterances
or unobjected-to hearsay, and constitute direct evidence that Hale both
threatened and harmed her. SeeState
v. Jackson,655 N.W.2d 828, 833 (Minn. App. 2003)
(stating that hearsay admitted into evidence without objection is substantive
evidence). Furthermore, the statements C.T.
made at the scene were corroborated by Jones and the police officers. Despite Hale’s argument that C.T.’s “trial
testimony completely vitiated the value of her unsworn statements to her
neighbor and the police,” it is clear from the verdict that the jury credited C.T.’s
statements made at the time of the incident and disbelieved the version of
events she testified to at trial. The
evidence is more than sufficient to support the verdict.

II. No-adverse-inference
instruction

Hale argues that the district court
committed reversible error by instructing the jury not to draw any adverse
inference from his failure to testify.
The record reflects that Hale’s trial counsel specifically requested the
district court to give this instruction, but the record does not show that Hale
personally consented to the instruction.

Because Hale did not object to the
instruction during the trial, we review this issue under the three-prong test
for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (noting the
United States Supreme Court requirement that before an appellate court reviews
an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the
error must affect substantial rights).
In this case, the state agrees that giving the instruction without
making a record of Hale’s permission was error.
SeeState
v. Thompson, 430 N.W.2d 151, 153 (Minn.
1998) (holding that it is error to give a jury instruction on a defendant’s
right not to testify without a defendant’s permission on the record). But we have previously held the giving of this
instruction to be harmless when an appellant has not met “his heavy burden of
showing that there is a reasonable likelihood that giving the instruction had a
significant effect on the jury’s verdict.”
State v. Darris, 648 N.W.2d
232, 240 (Minn.
2002).

Hale argues that because the central
issue in the case was credibility, the error in his case is not harmless,
citing State v. Duncan, in which this
court observed that “in light of the fact that the central issue in the case
was the credibility of [claimants’] statements, the jury instructions may have
had the deleterious effect of emphasizing [defendant’s] failure to take the
witness stand and deny the allegations.” 608 N.W.2d 551, 558 (Minn. App. 2000),
review denied (Minn. May 16, 2000). In Duncan, we concluded
that giving the no-adverse-inference instruction was not reversible error, but
the matter was reversed based on the cumulative effect of trial errors. Id.Here,
Hale’s attorney specifically requested the instruction both in writing and
orally on the record, and C.T. herself denied the allegations. Based on the entire record, we conclude that
Hale has not met the burden of showing that the instruction had a significant
effect on the verdict.

III. Single
behavioral incident

Hale correctly argues that the two
counts of felony fifth-degree assault arose out of a single behavioral incident
and that Minn. Stat. § 609.04 (2004) precludes entry of conviction and
sentencing on both counts. The state
concedes that the district court erred by entering a conviction and imposing a
sentence on each count. We therefore
reverse and vacate Hales’ conviction of and sentence for count II, assault in
the fifth degree in violation of Minn. Stat. § 609.224, subd. 1(2).

Affirmed
in part and reversed in part.

[1]Hale does not challenge his convictions or
sentences for the obstruction and possession charges and does not challenge the
use of prior convictions to enhance the assault charges to felonies.